THIS
OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.

CRAWFORD,
Chief Judge, delivered the
opinion of the Court.

Contrary
to his pleas, Appellant, a cadet
at the Air Force Academy, was convicted by officer members of one
specification
of Article 134, Uniform Code of Military Justice [hereinafter UCMJ], 10
U.S.C.
§ 934 (2000), by damaging a computer, in violation of 18 U.S.C. §
1030(A)(5)(B)
(2000).1He was sentenced to a dismissal
and total forfeitures.The convening
authority approved the dismissal and partial forfeitures, and the Air
Force
Court of Criminal Appeals affirmed the findings and sentence.

Because
we hold the military judge abused
his discretion in refusing to grant a defense-requested continuance to
obtain a
civilian lawyer (Issue I), we will not address the other granted issues.2

FACTS

The
Government contends that, contrary to the United States Air Force
Academy
(USAFA) rules, Appellant attempted to use his computer to access
internet chat
rooms.To prevent such communications,
USAFA had previously developed a firewall as part of the USAFA network.

On
February 2, 1999, defense counsel
requested a new investigation pursuant to Article 32, UCMJ, 10 U.S.C. §
832
(2000), arguing that the Government mistakenly told defense counsel
that logs
describing individuals at USAFA who had entered and exited the firewall
did not
exist.In discussing the motion, the
judge made several comments concerning the competency of the defense
counsel
for relying on the Government’s assertion that these logs did not
exist, and
for not independently investigating the existence of the logs.When discussing the reason for a new Article
32 investigation, the judge criticized the attorneys as follows:

Certainly
as an attorney, one would expect to question why [the firewall logs]
didn’t
exist.Whether it was a routine matter
or there was something about the particular logs from this occasion
that
somehow were lost or destroyed inadvertently . . . .We are just talking about testing the
available evidence, which is the function of an advocate.

In
response to defense counsel’s explanation as to why the motion was made
months
after the original Article 32 investigation, the judge stated, “but the
thought
never occurred to you at that time to ask why [the logs] didn’t exist?”“[I]f you have an indication that the type of
evidence that you are looking for should be in existence, then I think
as an
attorney you should be questioning why it is no longer in existence.”The judge said defense counsel should not
have accepted the government representative’s statement that the logs
did not
exist, and should have asked their own consultant rather than relying
on the
Government representative.The judge said
defense counsel should have assumed the records were always present and
“had
been misinformed.”Counsel responded
that they assumed the government was telling the truth.The judge then said, “a
competent advocate assume[s] nothing.”In response to the judge’s continued questioning, the defense
counsel
stated:“Again, if we were remiss and if
I’m not a competent advocate for not confirming that, I’ll take that
hit.But, it doesn’t take anything away
from the
fact that [the Government] actually knew the records existed . . . .”Later, the defense admitted they were
“novices with computers” and dependent upon experts who thought the
logs did
not exist.In denying the motion for a
new Article 32 investigation, the judge noted that the “availability of
the
firewall logs, regardless of their completeness, was unappreciated by
both the
prosecution and the defense.”He
continued:

The attorneys in this case were not by
training or experience well-equipped to deal with the complex computer[-]related materials inherent in the
alleged
offenses . . . .[I]t is utterly
confounding to the court the defense expert limited himself to stating
requests
to attorneys who were not equally qualified in the subject matter.

After
the judge denied the motion for a new
Article 32 investigation, Appellant told the judge he believed his
counsel were
ineffective at the original Article 32 investigation, and therefore
requested
new defense counsel.Appellant was then
told he had misunderstood the judge’s words; in not ordering a new
Article 32
investigation, the judge did not say that counsel was ineffective.Appellant disagreed, and personally addressed
the court as follows:“Your Honor, in
light of your statements that my counsel were ineffective at my Article
32
hearing, as well as throughout the proceedings leading up to this
court-martial, . . . I would like to fire both.”The
judge replied again that Appellant had
misunderstood his prior remarks, but that because Appellant insisted on
new
counsel, replacement counsel “must be available and prepared for trial
on 8 March 1999.”The judge
did not at this time release
original defense counsel.

Appellant
then requested representation by Major Theurer,
a
defense counsel with a reputation as an expert in computer matters, as
an
individual military defense counsel under Rule for Courts-Martial
506(b)[hereinafter R.C.M.].Although
Major Theurer’s superior approved the
request, he was
not available for trial on March 8, prompting the judge to state that
“if Major
Theurer is not available on the 8th of
March, then he
is not available period.The trial will
proceed without him.”On
February 10, Mr. Spinner, a civilian
defense counsel, entered his appearance on behalf of Appellant, but
requested a
delay until April 19, because of his schedule.On the same day,
the military judge faxed a response to Mr. Spinner, advising him that
the trial
date was March 8 and, “If you wish to represent the accused you need to
be
present and prepared on that date.”He
further advised Mr. Spinner, “If you cannot be available and prepared
on that
[sic] 8 Mar 99,
you are not reasonably available and should not undertake this
representation.”Finally, he advised Mr.
Spinner, “You should not count on any further continuance being
granted, and
make your plans accordingly for preparation or termination of your
representation.”

On February 12, the Government asked that the
continuance be
denied
because Appellant “is free to retain counsel . . . . Given the amount
of time
that Cadet Wiest has had, and still has,
to obtain counsel that are available on 8 Mar 99,
we believe no continuances are necessary at this time.”On the same date, the judge denied the
defense request for a continuance.3

Appellant
asked for new military defense counsel on March 8.Two new military defense counsel entered appearances
for Appellant and indicated they were ready to proceed.Mr. Spinner, who had also been retained as
civilian counsel, was not ready to begin because of other commitments.At this session, Appellant’s request to
release prior military counsel was granted, as was his request to be
represented by new counsel, without Mr. Spinner as civilian counsel.The trial proceeded as scheduled.

DISCUSSION

The
right to counsel is fundamental to our system of justice.United States v. Palenius,
2 M.J. 86 (C.M.A. 1977).It should
therefore be an unusual case, balancing all the factors involved, when
the
judge denies an initial and timely request for a continuance in order
to obtain
civilian counsel, particularly after the judge has criticized appointed
military
counsel.Indeed, we have noted that the
right to civilian counsel is a “most valuable right,” and that
therefore a

continuance
should be granted at least after initial requests for such counsel have
been
made, and certainly in a case where Appellant is unsure of his
appointed
military representation.United
States v. Kinard, 21 C.M.A. 300, 303,
45 C.M.R.
74, 77 (C.M.A. 1972)(citing United
States v. Donohew, 18 C.M.A. 149, 39
C.M.R. 149 (C.M.A. 1969)); cf.Morris v. Slappy, 461 U.S.
1, 3-4 (1983)(citing Slappy v.
Morris,
649 F.2d 718 (9th Cir. 1981)).Accordingly, we hold that the military judge erred by exercising
an
inelastic attitude in rescheduling Appellant’s trial, where such
request was
predicated on the judge’s negative comments about Appellant’s original
military
counsel and Appellant’s subsequent selection of a new civilian counsel.

Our
standard of review in the case at bar is abuse of discretion.United States v. Weisbeck,
50 M.J. 461, 464-66 (C.A.A.F. 1999).In
determining whether the judge abused his
discretion, we consider the factors articulated in United States v.
Miller:
“surprise, nature of any evidence involved, timeliness of the request,
substitute testimony or evidence, availability of witness or evidence
requested, length of continuance, prejudice to opponent, moving party
received
prior continuances, good faith of moving party, use of reasonable
diligence by
moving party, possible impact on verdict, and prior notice.”47 M.J. 352, 358 (C.A.A.F. 1997)(citation omitted). See alsoUnited
States v. Cokeley, 22 M.J. 225, 229-30
(C.M.A. 1986)(availability of witnesses); Kinard,
21 C.M.A. at 305, 45 C.M.R. at 79.

As
to surprise on February 10, Mr. Spinner requested a continuance well
before the
March 8 trial date.The request for a
continuance
was based on unexpected events.Here,
Appellant was clearly surprised by the harsh criticism of his counsel
by the
military judge, and this factor weighed in favor of a continuance.As to timeliness, Mr. Spinner requested the
continuance as soon as he was retained, six days after the court was
recessed
and well before the trial date.He had
made no prior requests for continuance, nor was there any delay or bad
faith by
Appellant as he contacted Mr. Spinner almost immediately and Mr.
Spinner promptly
submitted his request for a continuance.

Because
of the comments made by the judge concerning Appellant’s representation
at the
Article 32 hearing, Appellant requested the appointment of new military
counsel
and sought, in addition, to retain civilian counsel.Based on the record, this request was not a
surprise.Appellant’s request for new
counsel was submitted shortly after the February 2 session pursuant to
Article
39(a), UCMJ, 10 U.S.C. § 851(a) (2000).The timing of this request therefore allowed sufficient time to
establish a date when civilian counsel would be available to work
within the
schedule of the witnesses, none of whom were outside the United States.Moreover,
the Government did not establish a
reason for opposing Appellant’s request for a continuance, other than
noting
that the witnesses were available on March 8, 1999.Nor did they
establish an attempt by
Appellant to “vex” the Government, or show that witnesses would not be
available at a later date.“Where a
military judge denies a continuance request made for the purpose of
obtaining
civilian counsel, prejudice to the accused is likely.”Miller, 47 M.J. at
359.Given these circumstances,
the military judge should have granted the continuance, and therefore
abused
his discretion in failing to do so.

DECISION

The
decision of the United States Air Force
Court of Criminal Appeals is reversed, the findings and the sentence
are set
aside, and the record of trial is returned to the Judge Advocate
General for a
further disposition not inconsistent with this opinion.

TO SUSTAIN APPELLANT’S CONVICTION TO THE
LESSER-INCLUDED OFFENSE OF 18 U.S.C. § 1030(A)(5)(B) FOR INTENTIONALLY
ACCESSING A PROTECTED COMPUTER WITHOUT AUTHORIZATION AND RECKLESSLY
CAUSING
DAMAGE WHERE THERE IS NO EVIDENCE THAT APPELLANT’S ACCESS TO THE
COMPUTER IN
QUESTION ACTUALLY CAUSED THE DAMAGE ALLEGED BY THE PROSECUTION AND
WHERE
APPELLANT HONESTLY BELIEVED HIS ACCESS TO THE SYSTEM WAS AUTHORIZED.

III.WHETHER THE MILITARY JUDGE ERRED IN
INSTRUCTING THE MEMBERS ON THE LESSER-INCLUDED OFFENSE OF SPECIFICATION
1 OF
THE CHARGE WHERE HE FAILED TO INSTRUCT THE MEMBERS THAT THE
UNAUTHORIZED ACCESS
TO THE COMPUTER SYSTEM MUST HAVE BEEN INTENTIONAL.

IV.WHETHER THE MILITARY JUDGE ERRED IN PROVIDING THE COURT MEMBERS
A
MISTAKE OF FACT INSTRUCTION WHICH REQUIRED THEM TO FIND THAT
APPELLANT’S
MISTAKE OF FACT WAS REASONABLE INSTEAD OF MERELY HONEST.

3 We need not
decide whether the
trial judge was disqualified under R.C.M. 902(b)(1),
because he had “knowledge of disputed evidentiary facts concerning” the
availability of Mr. Spinner by obtaining
facts ex parte and not subject to judicial
notice.

ERDMANN, Judge (dissenting):

I
respectfully dissent.I find no clear
abuse of discretion in the military judge’s refusal to grant a
continuance and
would affirm the Air Force Court of Criminal Appeals (AFCCA) on Issue I.1

The
majority decision concludes that it would
be an unusual case where a judge denies “an initial and timely request
for a
continuance in order to obtain civilian counsel, particularly after the
judge
has criticized appointed military counsel.”The majority opinion goes on to hold that the military judge
erred by
exercising an “inelastic attitude” in rescheduling Wiest’s
trial.

This
was not an initial request for continuance as the military judge had
already
granted a 34-day continuance to allow Wiest
the
opportunity to find available civilian counsel after he “fired” his
original
military counsel.Wiest
had been detailed two new military attorneys whom he accepted without
reservation and who effectively represented him throughout the trial.The record simply does not support either the
conclusion that the military judge was “inflexible” in regard to the
second
requested continuance or that Wiest was
prejudiced as
a result of the denial.

Factual
Background

Charges were
preferred against Wiest
on July 27, 1998, and a hearing pursuant to Article 32, Uniform Code of
Military Justice [UCMJ], 10 U.S.C. § 832 (2000), was scheduled for
August 4,
1998.As a result of a motion by Wiest to be represented by the circuit defense
counsel, the
Article 32 hearing was delayed until September 16.Following the Article 32 hearing, charges
were referred on November 30, and the parties agreed upon a February 2, 1999 trial date.

On February 2,
all parties and witnesses were present
and prepared for trial at the U.S. Air Force Academy.Before Wiest
entered his pleas, however, his defense attorneys made a motion for a
new
Article 32 investigation.The basis for
the motion was that during the first Article 32 hearing, the Government
had
informed the Article 32 investigating officer and defense counsel that
certain
firewall logs did not exist.It was
later discovered by the defense that these logs did in fact exist.The defense argued that these logs were
critical to their case and that a new Article 32 investigation should
be
held.Granting the motion on the day of
trial would have had the effect of vacating the February 2 trial date.

The military
judge conducted a hearing on the motion and
pressed the defense as to why they had not earlier challenged the
Government’s
assertion that the logs had been destroyed.The defense counsel responded that he believed that he could
rely upon
the representations of the Government.The military judge ultimately denied the motion for a new
Article 32
investigation, noting that the “availability of the firewall logs,
regardless
of their completeness, was unappreciated by both the prosecution and
the
defense.”

After the
military judge announced his decision, Wiest
made the following statement:

Your Honor, in light of your
statements that my counsel
were ineffective at my Article 32 hearing, as well as throughout the
proceedings leading up to this court-martial, at this time, I would
like to
fire them both.

The
military judge responded that he did not think that he ever used the
term
“ineffective” nor had he questioned the defense attorneys’
effectiveness, and
he thought that Wiest had misunderstood
his
statements to the defense counsel.In
fact, while the record reflects that the military judge did have a
spirited
exchange with the defense counsel, he did not at any time state that
the
defense attorneys were ineffective nor did
his ruling
reflect any such conclusion.

Nevertheless,
over the next two days the military judge
held a series of hearings to determine the availability of new military
counsel
for Wiest and a new trial date.The trial counsel consulted with their
civilian and military witnesses and requested a trial date of March 8.During this period Wiest
and defense counsel were able to locate military counsel that would be
available for the March 8 trial date.During a session pursuant to Article 39(a), UCMJ, 10
U.S.C. § 839(a) (2000) on February
4, 1999, the military
judge emphasized to Wiest
a disinclination to grant a further continuance:

I
don’t control whether counsel is acceptable to you.I do, however, control when the trial
proceeds.And, the trial is going to
proceed
on the 8th of March 1999, unless somebody
convinces me otherwise by very strong and compelling evidence that it
has to be
delayed.

On February 8, Wiest retained
Frank J. Spinner, a civilian attorney, to
represent
him in addition to his two detailed military counsel.Wiest retained Mr.
Spinner even though he knew Mr. Spinner would not be available on March
8 and
was aware of the judge’s disinclination to grant a further delay.Mr. Spinner formally entered his appearance
as civilian counsel on February 10 and at that time requested that the
trial be
delayed for six weeks until April 19 to accommodate his schedule.

The military
judge denied the request that same day,
stating that he had made clear to Wiest on
the record
on February 2 that any replacement counsel must be available and
prepared for
trial on March 8 and if Mr. Spinner could not be available and prepared
on that
date then he was not reasonably available.Trial counsel also opposed the request, albeit two days later,
on the
grounds that it was unnecessary because Wiest
had,
and still did have, sufficient time to obtain civilian counsel who
could be
available on March 8.When the parties
assembled for the court-martial on March 8, Wiest
renewed his request for a continuance on the grounds that his civilian
counsel
was unable to attend the court-martial due to his scheduling conflict.2That request was
denied as well.

Prior to the
beginning of trial on March 8, Wiest
accepted his two newly appointed military counsel
without reservation and at that time the military judge released Wiest’s original military counsel.The new military counsel represented Wiest
throughout the court-martial.Wiest did not
attempt to discharge his second set of military counsel, did not
express any
dissatisfaction with their performance and did not, at any stage, raise
any
issue of ineffective assistance of counsel.Indeed, his military counsel succeeded in winning an acquittal
on all
but one lesser-included offense.

Constitutional
Right to Counsel of Choice

While the Sixth
Amendment guarantees the assistance of
counsel in all criminal prosecutions, it provides only a qualified –
not
absolute – right to retain counsel of the defendant’s own choosing:

[T]he purpose of providing assistance of
counsel is simply to ensure that criminal defendants receive a fair
trial, and
that in evaluating Sixth Amendment claims, the appropriate inquiry
focuses on
the adversarial process, not on the accused's
relationship with his lawyer as such.Thus, while the right to select and be represented by one's
preferred
attorney is comprehended by the Sixth Amendment, the essential aim of
the
Amendment is to guarantee an effective advocate for each criminal
defendant
rather than to ensure that a defendant will inexorably be represented
by the
lawyer whom he prefers.

In reviewing
the “adversarial process” in this case, I
note that Wiest had two competent,
prepared advocates
representing him.This
is not a case in which the military judge’s action resulted in the
defendant
being forced to trial with an inadequately prepared attorney or no
attorney at
all.As the military judge pointed out,
“not everyone can be represented by F. Lee Bailey, Johnny Cochran, or
even Mr.
Frank Spinner.”Notwithstanding
the absence of Mr. Spinner, the fairness of the
adversarial process was preserved.The
parameters of the constitutional right to counsel of choice were
further
clarified in United States v. Hughey,
147 F.3d
423, 428 (5th Cir. 1998)(citations and
internal
quotation marks omitted):

While we concur that trial lawyers are not for the most
part fungible, the Sixth Amendment simply does not provide an
inexorable right
to representation by a criminal defendant’s preferred lawyer.Indeed, there is no constitutional right to
representation by a particular attorney.The Sixth Amendment right to counsel of choice is limited, and
protects
only a paying defendant’s fair or reasonable opportunity to obtain
counsel of
the defendant’s choice.

Wiest was afforded a
fair and reasonable opportunity to
obtain civilian counsel of his own choosing.On February 2, when Wiest requested
a change
of counsel, the military judge granted Wiest
a 34-day
continuance until March 8.He even
confirmed that the date was firm two days later.Thus,
even from the more conservative date of
February 4, Wiest had 32 days to obtain
counsel of
his choosing.Thirty-two days is
reasonable enough time to secure counsel.SeeUnited States v. Carroll, 510
F.2d 507, 510 (5th Cir. 1992)(20 days
“reasonable,
even generous”); see alsoUnger v. Sarafite,
376 U.S. 575, 590
(1964)(five days “not a constitutionally
inadequate time” to retain counsel).

Most cases in
this area address the situation where a
“replacement” attorney is sought, not an “additional” attorney as in
this
case.Few federal courts have considered
an appellant’s right to representation by multiple counsel.Where that issue has been addressed, courts
have generally found no abuse of discretion in the denial of a
requested
continuance when the appellant was otherwise represented by qualified
and
competent counsel.See,
e.g., United States v. Riccobene,
709 F.2d
214, 231 (3d Cir. 1983); United States v. McManaman,
653 F.2d 458, 460 (10th Cir. 1981).The “burden [of
scheduling trials] counsels against
continuances except for compelling reasons.”Morris v. Slappy,
461
U.S. 1, 11 (1983).The court's schedule is a matter of necessary
discretion, and should generally not be subordinated to the schedules
of the
lawyers that appear before it.3Id.

A
defendant's qualified right to counsel does not extend to an inflexible
insistence on a specific attorney who cannot comply with the court's
reasonable
schedule.Not only was Wiest provided with two competent defense
attorneys, but
the March 8 trial date gave him almost five weeks to secure an
additional
civilian attorney if he so chose.This
was not an unreasonably short period of time.Wiest’s second request for a
continuance of an
additional six weeks to accommodate Mr. Spinner’s schedule was simply
unreasonable in light of the previous proceedings in this case.In addition, Wiest
chose to continue with Mr. Spinner rather than make timely efforts to
secure
other civilian counsel in order to “preserve the issue for appellate
purposes.”Wiest
was effectively represented in the adversarial process and there was no
deprivation of the constitutional right to counsel.

Statutory Right
to Counsel of Choice

Article 38(b),
UCMJ, 10 U.S.C. § 838(b) (2000),
establishes the right of an accused to representation in his defense.Subparagraph (3) provides that an accused is
entitled to detailed military counsel or to military counsel of his
choice if
reasonably available.Subparagraph (2)
provides that “[t]he accused may
be represented by civilian
counsel if provided by him.”The right
to counsel under Article 38(b) is, in significant respects, broader
than that
of the Sixth Amendment. Article
38; United States
v. Gnibus, 21 M.J. 1, 6
(C.M.A. 1985).This additional breadth notwithstanding, the
statutory right to counsel of choice, including civilian counsel of
choice, “is
not absolute and must be balanced against society’s interest in the
efficient
and expeditious administration of justice.”United States v. Thomas, 22 M.J. 57, 59 (C.M.A. 1986)(citing Morris.)

In
Thomas this Court found no abuse of discretion in the denial of
an
eight-day continuance where defendant had previously been granted a
twenty-day
continuance and had been warned that a second continuance would not be
granted.Id. at 59.Although civilian counsel failed to appear on the set trial date
apparently due to a medical emergency in his family, detailed defense
counsel
ably represented defendant.Similarly,
in United States v. Montoya, 13 M.J. 268, 274 (C.M.A. 1982),
this Court
held that “the accused's unfettered choice
to select
a civilian counsel at any time during the trial . . . cannot operate to
unreasonably delay the progress of the trial.”

An accused can always discharge his attorney, but if he desires
to substitute another attorney for the one discharged, his [Article
38(b)]
right is qualified in "that the request for substitution of counsel
cannot
impede or unreasonably delay the proceedings.

Generally,
a military judge may grant a continuance whenever fairness renders it
appropriate to do so.Article 40, UCMJ,
10 U.S.C. § 840 (2000); Rule for Courts-Martial 906(b)(1).After an accused has been given a fair or
reasonable opportunity to obtain counsel of choice, the decision to
grant or
deny a continuance to permit a further opportunity to do so rests
within the
broad discretion of the trial court and, absent clear abuse, will not
be
overturned.Thomas, 22 M.J. at 59.

In
United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997), this Court
applied
eleven factors to be considered in evaluating whether a military judge
abused
his discretion in denying a motion for a continuance.Id.
at 358 (citing F. Gilligan & F. Lederer,
Court-Martial
Procedure § 18-32.00 at 704 (1991)).The AFCCA made factual findings in regard to the applicable Miller
factors and held that the military judge’s denial of the continuance
was not an
abuse of discretion.4United States v. Wiest,
ACM 33964 (Sep. 24, 2002).This
Court is bound by the lower court’s findings of fact unless they are
clearly
erroneous.United States v. Benedict, 55 M.J. 451,
454 (C.A.A.F.
2001).

The
record in this case does not support the conclusion that the military
judge’s
denial of the second requested continuance was “clearly untenable and .
. .
deprive[d] a party of a substantial right such as to amount to a denial
of
justice,” which is the abuse of discretion standard for motions for
continuance.Miller,
47 M.J. at 358 (citation and internal quotation marks omitted).

No Showing of
Prejudice

Wiest argues that he
was
prejudiced because trial lawyers are not fungible, and he therefore has
the
right to insist upon Mr. Spinner's services.Wiest misunderstands the scope of
the right to
counsel of choice.Although trial
lawyers are not for the most part fungible, the Sixth Amendment simply
does not
provide an inexorable right to representation by a criminal defendant's
preferred lawyer.Wheat,
486 U.S. at 159.Moreover, despite Mr. Spinner’s experience as a litigator, it is
pure
speculation to conclude that he would have obtained a better result for
Wiest than the one Wiest
received
from his detailed counsel.

Where there is
no prejudice there should be no
reversal.In United States v. Kinard, this Court stated:

Where no harmful consequence resulted from
denial of a continuance, there is no ground for complaint, and where
the
withdrawing or discharged counsel was adequately replaced and the
defense
properly presented, it is generally held that refusal of a postponement
was not
prejudicial to the accused.

21
C.M.A. 300, 306, 45 C.M.R. 74, 82 (citations and internal quotation
marks
omitted).Likewise, in
United States v. Wellington, 58 M.J. 420, 425 (C.A.A.F. 2003),
we
stated:“[W]e need not decide if the
military judge abused his discretion [by denying a continuance
request],
because Appellant has not established that he was prejudiced.”Here, no harmful consequence resulted:Wiest was not
forced to trial without adequately prepared, competent counsel, much
less
without any counsel at all.Wiest has not offered any other facts that would
support
the conclusion that he was denied a fair trial.As Wiest was not prejudiced, any
error must be
deemed harmless.

Conclusion

There
was no deprivation of either Wiest’s Sixth
Amendment
or Article 38(b) qualified right to counsel of choice.Even if we were to assume that the military
judge’s comments to the initial military counsel were inappropriate,
that issue
was adequately remedied when Wiest secured
two new
military attorneys.He accepted these
attorneys without reservation and at no point has he complained of
their
competence or representation.In
addition, Wiest was afforded a fair and
reasonable
opportunity to procure his choice of civilian counsel and was clearly
on notice
that he should find counsel who was available on the selected date.Instead, he knowingly selected unavailable
civilian counsel.

The
language utilized by the military judge when he announced the
rescheduled trial
date5
does not reflect an inflexible attitude towards further continuances –
rather
it reflects a clear statement that further continuances would not be
allowed
except for strong and compelling reasons.I am reluctant to find error where the military judge both
allowed an

objectively
reasonable time for Wiest to secure
additional
counsel and where he acted to ensure that Wiest
would
be adequately represented by prepared and available counsel.Given the broad latitude of the court to
control its scheduling, I find no clear abuse of the military judge's
discretion and no deprivation of Wiest’s
constitutional or statutory rights in the denial of a continuance.

Finally,
it is a rare hearing indeed where a judge’s comments cannot be
construed by one
party or another as being “negative.”Under the majority opinion, I fear that civilian counsel will be
able to
“run” the court dockets based upon their scheduling concerns rather
than
traditional concerns for the sound administration of justice.

I
would therefore affirm the decision of the AFCCA.

FOOTNOTES:

1 Due to its disposition of Issue I,
the majority opinion does not address the remaining issues.I would affirm the AFCCA on all issues.

2 Rather than
actively seek
alternative civilian counsel, Wiest
apparently
elected to keep Mr. Spinner as his civilian defense counsel in order to
“preserve the issue for appellate purposes.”

3
Lawyers,
as officers of the court, should accept cases and clients only to the
extent
that they are able to adequately represent them.See
generallyABA Standards for
Criminal Justice Prosecution Function and Defense Function
4-1.3(e)(3d ed.
1993)("Defense counsel should not carry a workload that, by reason of
its
excessive size, interferes with the rendering of quality
representation,
endangers the client's interest in the speedy disposition of charges,
or may
lead to the breach of professional obligations . . . ."); Model Rules
of Prof’l Conduct R. 1.7(b) (addressing a
lawyer's duty to his
client when his representation may be limited by other considerations,
including his representation of another client).Part
and parcel of these obligations is the
duty not to adopt a schedule that hampers the administration of justice.SeeUnited States v. Hanhardt, 156 F. Supp. 2d
988,
999–1000 (N.D. Ill. 2001).

4 The AFCCA
weighed the following Miller
factors:surprise, length of
continuance, prejudice, prior continuances, possible impact on the
verdict,
good faith and reasonable diligence of moving party, and prior notice.Wiest, ACM
33964 at 7–12.

5 “[T]he trial
is going to proceed on
the 8th of March unless somebody convinces me otherwise by
very
strong and compelling evidence that it has to be delayed.”